The Proposal for a Regulation on a Common European Sales Law: Deficits of the Most Recent Textual Layer of European Contract Law

Edinburgh Law Review, Vol. 16, No. 3, pp. 301-357, September 2012

Max Planck Private Law Research Paper No. 12/14

Posted: 4 Aug 2012 Last revised: 31 Aug 2012

See all articles by Horst Eidenmueller

Horst Eidenmueller

University of Oxford - Faculty of Law; European Corporate Governance Institute (ECGI)

Nils Jansen

University of Münster

Eva-Maria Kieninger

University of Wuerzburg

Gerhard Wagner

Humboldt University School of Law; University of Chicago Law School

Reinhard Zimmermann

Max Planck Institute for Comparative and International Private Law

Date Written: May 1, 2012

Abstract

On 11 October 2011, the European Commission published a Proposal for a Regulation on an optional Common European Sales Law (CESL). This text represents a milestone for the further development of European contract law. Our essay critically examines and evaluates the Commission’s proposal. It outlines the Commission’s draft as well as its background and deals with some of the most pressing doctrinal and policy issues raised by it. We show that the suggested range of application and the technical mode for opting into the CESL are flawed. Further, the CESL incorporates many elements and doctrines of the current acquis communautaire, such as unduly extensive information duties and withdrawal rights as well as a policing of standard contract terms, without reconsidering their proper purposes and uses. With respect to the rules on sales law, it is particularly the mandatory character of most of them that poses grave problems. We also demonstrate that the CESL’s optional character does not eliminate the quality concerns raised in this essay: The CESL might become a ‘success’ despite its shortcomings. Hence, notwithstanding its optional character, the proposed text should not be enacted. What is needed is a broad and thorough debate on the scope, forms and contents of contract law harmonization in Europe rather than the speedy legislative enactment of a flawed product.

Keywords: Common European Sales Law, European Contract Law, Harmonization of Laws, Regulatory Competition, Acquis Communautaire, Optional Instrument

Suggested Citation

Eidenmueller, Horst G. M. and Jansen, Nils and Kieninger, Eva-Maria and Wagner, Gerhard and Zimmermann, Reinhard, The Proposal for a Regulation on a Common European Sales Law: Deficits of the Most Recent Textual Layer of European Contract Law (May 1, 2012). Edinburgh Law Review, Vol. 16, No. 3, pp. 301-357, September 2012, Max Planck Private Law Research Paper No. 12/14, Available at SSRN: https://ssrn.com/abstract=2118570

Horst G. M. Eidenmueller

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

European Corporate Governance Institute (ECGI) ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

Nils Jansen

University of Münster ( email )

Institut für Rechtsgeschichte
Universitätsstraße 14-16
Münster, D-48143
Germany

Eva-Maria Kieninger

University of Wuerzburg ( email )

Domerschulstraße 16
Würzburg, 97070
Germany
+499313182300 (Phone)
+499313182888 (Fax)

Gerhard Wagner

Humboldt University School of Law ( email )

Unter den Linden 9
Berlin, 10099
Germany

University of Chicago Law School ( email )

1111 East 60th Street
Chicago, IL 60637
United States

Reinhard Zimmermann (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, 20148
Germany

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